Kelley & Moyers v. Bowman

Williams, Judge,

(dissenting) :

Kelley & Moyers were granted a license by the board of affairs of the city of Bluefield to sell in toxicating liquors at retail in *57 said city. They then applied to E. L. Bowman, clerk of the. county court of Mercer county, for a state license'. He refused to issue it, and plaintiffs have applied to this court for a Avrit of mandamus to compel him to do so. Whether the writ should be granted, or not, depends upon the question of the power of the city to grant both a state and city license to sell intoxicating liquors. The question requires a construction of the city’s charter. Properly construed, I think no power is given to grant a state license. Its charter is chapter 1, Acts of 1909, section 6 of which reads as follows:

“All the corporate poAvers of said city shall be vested in and exercised by the board of affairs, or under its authority, except as otherwise provided in this act." Italics are mine.

Section 7 reads, in part, as follows: “The board of affairs of said city shall have and are hereby granted power to have said city surveyed;” etc., then follows a long list of enumerated powers, consisting of more than five printed pages, and among them is the following, aúz: “To have the sole and exclusive right to grant, refuse or revoke any and all licenses for the carrying on of any business within said city on which the state exacts or may exact a license tax.” This language must be read and construed in the light of other portions of the act. It is not proper to construe the language of a single isolated clause of a statute according to the literal meaning of the Avords employed, when there are other provisions of the act ’which sIioav that the Avords were intended to be taken in a limited, or qualified sense. The intention of the law makers will prevail over a strict and literal sense of any particular clause in an act, when the intention becomes clearly manifest from the act taken in its entirety. “Hot only may the meaning óf Avords be restricted by the subject matter of an act or to avoid repugnance with other parts, but for 'like reasons they may be expanded. The application of the words of a single proA’ision may be enlarged or restrained to bring the operation of the act within the intention of the legislature, when violence •will not be done by such interpretation to the language of 'the statute. The propriety and necessity of thus construing words are most obvious and imperative when the purpose is to harmonize one part of an act with another in accord with its. general intent. The statute itself furnishes the best means of its *58 own exposition; and if tlie intent of tlae act can be clearly ascertained from a reading of its provisions, and all its parts may be brought into harmony therewith, that intent will prevail without resorting to other aids for construction.” Lewis’ Sutherland on Statutory Construction, section 348.

I do not believe the legislature intended, by this clause in section 7, to confer upon .the board of affairs “the sole and exclusive right to grant” state licenses, but' that the word “licenses” was here used in a restricted sense, and applies only to city licenses.

The subject matter rvas the incorporation of a municpality, and the vesting of it with powers which were assential to its government, one of 'which was the raising of revenues. The legislature was not dealing with the subject of state licenses in this act, and it was not its purpose to change the general plan' provided by chapter 32 of the, code for the granting of state licenses for the numerous occupations for which the state requires a license and exacts a license tax. In most instances the county court is made the tribunal for the granting of state licenses; in some instances the power is vested in the auditor, as for instance the granting of a license to maintain an automobile; and in some cases the power is given to the secretary of state, as the granting of a license to exist and to do business as a private corporation. For instance, the state exacts' a license tax from all domestic corporations, 'whether they be resident or non-resident, and from all foreign corporations who do business in the state; and by section 30 of chapter 54 of the Code, the license to a foreign corporation is issued by the secretary of state, and all corporation license taxes are collected by the auditor. No doubt some corporations of both classes do business in the city of Bluefield. Now, is it reasonable to suppose that the legislature intended to confer on the city of Bluefield the “sole and exclusive right” to grant state licenses to such corporations to do business in that city? Certainly not. Suppose á non-resident corporation had not obtained a license from the secretary of state, entitling it do business in West Virginia, and should, notwithstanding, desire to locate in, and do business in the city -of Bluefield, then, according to the literal construction given by the majority of the court to the clause in question, the board of affairs of the city would *59 Rave the sole power to grant both state and city license to do business within the city. Such was not the legislative intent. Such power vested in the city would create too serious a de-rangment in the system provided by general law for the issuing of state licenses, and the' collection of the state’s revenues. It can not be argued that corporation: license, and automobile license which is expressly made co-extensive with the state, are to be made exceptions, if the clause is to be interpreted literally. The language is, “and any and all licenses.” If this means a state license in any case, it must mean state licenses in all cases in regard to which the state exacts a license tax. If the board of affairs of the city has the sole and exclusive right to grant both state and city licenses to sell intoxicating liquor within the corporate limits, it has also the sole arid exclusive right to grant both state and city licenses to a private corporation to do business in the city, and to a person to maintain an automobile, because they are some of the things for which the state exacts a license tax.

In construing the clause in question the Avhole act should be considered, and any other section, or clause, dealing with the subject, or matter embraced in the clause to be interpreted should be read in connection 'with it; and, if possible, the several parts should be made to harmonize. This is a rule of statutory construction that is universally appliéd. Turning, then, to section 59 of the act, which deals particularly with the subject of licenses, we find that it reads as follows:

“Whenever anything for which a state license is or may bo required is to' be done within said city or within two miles of the corporate limits thereof, the board of affairs as herein provided may by' ordinance require a city license to be had for doing the same, the amount of which license shall be fixed by the board of affairs, in no case, however, to be less than the amount charged by the state for a license for doing the same thing, and may in any case require from the person licensed a bond, with sureties and in such penalty and with such conditions as it may deem proper, and the board of affairs on notice, may revoke such license at any time if the condition of the said bond be broken; and no license to sell strong or spirituous liquors or wine or beer, ale, porter or drinks of like nature, within said city, or within two miles of the corporate limits *60 thereof, shall be granted by the county court of Mercer county, unless the person applying therefor shall produce to said county court the certificate of the board of affairs of said city, that said board of affairs has granted a city license authorizing said person to sell as aforesaid and the same has not been vetoed by the council as herein provided for.

“A person assessed with a city license for the sale of strong or spiritous liquors, or wine or beer, ale, porter or drinks of like nature within said city or within two miles of the corporate limits thereof, shall pay said tax to the treasurer of the city before any such license shall be granted to him by said board of affairs. The board of affairs may impose a license and assess a tax thereon on all 'wheeled vehicles for public hire and upon all dogs kept within said corporate limits. The board of affairs may prescribe, impose and enforce reasonable fines and penalties, including imprisonment, under the order of the police judge of said city, or the persons lawfully exercising his functions, upon any person carrying on, or attempting to carry on, any business for which a city license is required, without first obtaining a city license therefor and paying the 'city license tax assessed thereon. All licenses provided for in this act shall be paid to the treasurer of the city, and for the purpose of enforcing the ’ provisions of this section the city shall have police jurisdiction for two miles beyond the corporate limits thereof.”

This section, I think, furnishes the • true interpretation of the words “any and all licenses” which the city is, through its board of affairs, empowered by section 7 to grant. It means city licenses — not both city and state licenses. The qualifying words, “any” and “all,” in the controverted clause of section 7, have no reference whatever to the various officers, or tribu--nals, which are vested by the general law with the power of, granting licenses, but they refer to the subjects, or things, for the doing of which a license is required.

Section 59 deals specifically with the subject of licenses; and five points aré prominently brought out in it. ’ -

(1). That the license spoken of is a city license.

(3). That-the things to be licensed, under this section, are those things for which a state license is or may be required.

(3). That the license must be authorized by ordinance as provided for in the act.

*61 (4). Tliat the council is given the right of veto. But more as to this point later.

(5). The right vested in the county court by general law to grant, or refuse, state license to sell intoxicating liquors within the town, or within two miles of it's corporate limits, notwithstanding the applicant may have obtained a city license therefor, is recognized.

The board of affairs is not authorized to grant a city license unless pursuant to an ordinance passed; and an ordinace can be passed only in the manner provided by the charter.

Section 53 provides the manner of passing ordinances and says that no ordinance shall be passed except by bill. “No bill shall be considered for final passage at the meeting at which it was introduced, but at any subsequent regular weekly public meeting of the board of affairs such bill may be taken up by the board of affairs for final action.”

Section 54 provides the manner of keeping the record of “all ordinances passed by the board of affairs and all vetoes of the council.”

An ordinance is a local law, and the passing of it is a legislative act concerning which the council is given the right of veto. It can not become a law of the city until it is either approved by the council, or until the council has had an opportunity to exercise its right of veto, and has failed to do so. The granting of a license, pursuant to an ordinance authorizing it, is purely a ministerial act; and, in order to ascertain whether the council has the right to veto a license granted by the board of affairs it is necessary to construe section 18, which reads as follows:

“The right of veto on any franchise or ordinance passed or any license granted by the board of affairs is hereby conferred upon 'the council, in the manner hereinafter described.”

This would appear to give the right to veto any and all li- ' censes granted by the board of affairs. But this section must be read in connection with section 7 which gives the board of affairs the sole and exclusive right to grant all licenses for certain things; that is, for those things for which the state exacts a license tax. The two provisions should be made to harmonize, if possible, and the only way this can be done is to limit the application of section 18 to licenses on those sub- *62 jeets for which the state does not require a license tax. The controverted clause in section 7 can thus be given full effect, and section 18 will be given the broadest effect which it is possible for it to have consistent with section 7.

Section 6 does not vest the corporate powers of the city in its .board of affairs absolutely, but only “except as otherwise provided in this act.” This shows a purpose to place a limitation upon its powers, and we have to look to other portions of the act to find those limitations. One of them is the right of veto conferred upon the council. Section 18 is an express grant of the veto power to the council; and the purpose of the legislature to preserve this power to the council is shown by expressly reserving it in sections 47, 48 and 49 of the act. Section 49 reads as follows: “Whenever the council shall express its veto of any franchise, license or ordinance passed by the board of affairs, it shall, not later than the second day thereafter, cause such franchise or ordinance with its veto thereof and its written reasons therefor, addressed to the board of affairs, to be transmitted to the auditor and the auditor shall submit the same to the board of affairs at its next regular meeting or special meeting called for that purpose, which shall be noted in the minutes of said meeting; but a failure to transmit such franchise, license or ordinance within said time shall not render such veto void. If the franchise, license or ordinance shall be changed and again passed by the board of affairs, it shall be treated as a new or original ordinance and subject to the veto power of the council.”

Moreover, the council is vested with the power of filling vacancies in the board of affairs, and the power of impeaching its members ; also, by section 50, with the power to decide a tie in the vote of the board of affairs “on the passage of any franchise, license or ordinance.” It is manifest from these various provisions of the charter, which relate directly to the veto power of the council, that the council is not a nonentity in the plan of the city’s government, but that it is vested with considerable power, even if it does have to be exercised 'negatively; Its - veto is absolute; it can prevent the passage of any ordinance, and by preventing the passage of an ordinance authorizing a. license, it can thus prevent the granting of a license, because the license can only be granted pursuant to an ordinance.

*63 Now let us assume that an ordinance has been passed requiring a city license for the doing of all things for which a license may be properly required, and a city license tax for the doing of each particular thing, among 'which are some for which the state exacts a license tax and some for which it does not exact a license tax, how is the license to be obtained by the party desiring to conduct the business ? If the business is one for which the state does not exact a license tax he makes application to the board of affairs for city license who may grant it; but this license is subject to the veto power of the council because section 18, which defines the power of the council, says: “the right of veto of any franchise or ordinance passed or any licens'e granted by the board of affairs is hereby conferred upon the council, in the manner hereinafter described.” But if the thing to be done requires also a state license he must apply to the board of affairs for a city license, and also to the county court, or to the person authorized by the general law to grant state licenses, and after obtaining both a city and state license he is authorized to conduct the business. Because, city licenses granted by the board of affairs for the doing of those things for which the state exacts a license tax, are not subject to the veto of the council. Section 7 gives to the board of affairs the sole and exclusive right to grant all city licenses for the doing of those things. The words “sole and exclusive” are used only for the purpose of denying to the council the veto power upon such licenses. '

There is another very cogent reason in support of the view that the city was not vested with power to grant state licenses; and that is, that, by the concluding clause of section 59, all license taxes provided for in the act are to be paid to the treasurer of the city; and the treasurer of the city is nowhere in the act expressly made the agent of the state to collect or to receive its taxes. The language is: “all licenses provided for in this act shall be paid to the -treasurer of the city,” etc.

It seems to me that the construction for 'which I contend is in perfect accord with the general scheme and purpose of the charter, and renders the act harmonious as a whole; whereas, the construction given to the clause in section 7, by the majority of the Court, not only produces a great disturbance in the general plan provided by chapter 32 for the granting of state'li *64 censes, but also produces an irreconcilable conflict between the different provisions of the charter itself. The most of section 59 of the charter is meaningless, if the clause in question, in section 7, is to be construed as giving the board of affairs the sole and exclusive right to grant any and all state licenses, as well as any and all city licenses. Section 59 recognizes the right as still existing in the county court to grant state licenses for the sale of intoxicating liquors, and inhibits said court from granting such license unless the party applying therefor shall have first obtained from the board of affairs “a city license.” In my opinion, the legislature has defined, in this section, what is meant by “any and all licenses” in section 7. Section 12 of chapter 32, vests the county court with the power to grant state licenses to sell intoxicating liquors, and the charter of the City of Bluefield has not expressly revoked it. A literal interpertation of an isolated clause should not be resorted to for the purpose of revoking this power by mere implication, especially when such clause is susceptible of a different interpretation which is more in harmony with the general purpose of the act. I believe that the words “sole and exclusive” were intended only for the purpose of denying to the council the right of veto which had been given to it by section 18 of the act; and that the words “any and all licenses,” mean any and all city licenses. I would refuse the peremptory writ of nvmdamvus.

It was suggested in argument that any statute which sought to vest in a municipality the sole power to grant state licenses would be in violation of section 24 of Article VIII of the Constitution. If this were the first time this question was presented I would be strongly inclined to that view. But the question has been twice decided by this Court: first in Wilson v. Boss, 40 W. Va. 278 , and again in Ward & Co. v. County Court, 51 W. Va. 102 . In both of these cases the question was fairly presented, and in .each case it 'was decided that such an act was not unconstitutional. In deference to these decisions and to the 'doctrine of stare decisis, I feel compelled to yield my personal opinion concerning the proper construction to be given to that section of the Constitution. These decisions have come to be recognized as the law, and I do not think the principle involved is of sufficient importance to justify their overturning at this time, even if a majority of the Court should be so inclined.